1. The following principles seem to me to have been laid down, so far as this Presidency is concerned:
(1) A stranger-purchaser of the undivided share of a co-parcener in a joint Hindu family, if out of possession, should not be given joint possession with the other coparceners, but should be left to his remedy of a suit for partition: Balaji Anant Rajddiksha v. Ganeh Janardan Kamati 3 Ind. Dec. 330 Pandu Vithoji Ladke v. Goma Ramji Marwadi 21 Bom. L.R. 213 Ishrappa Ganap Hegde v. Krishna Putta Shankar Hegde 24 Bom. L.R. 428 : A.I.R. 1922 Bom. 413.
(2) On the other hand, a co-parcener, who has been excluded, may obtain joint possession with such a purchaser, who has obtained possession of the joint family property: Bhiku v. Puttu 8 Bom. L.R. 99 and the prior rulings there cited.
(3) The purchaser in possession need not be ejected in a suit for recovery of possession brought by an excluded coparcener, but can be declared to be entitled to hold (pending a partition) as a tenant-in-common with the other co-parceners: Babaji Lakshman v. Vasudev Vinayak 11 Mad. Jur. 344 : 1 Ind. Dec. 63 Kallapa v. Vinkatesh Vinayak 1 Ind. Dec. 873 Dugappa Sheti v. Venkataramaya 3 Ind. Dec. 325 Balaji Anant Rajadiksha v. Ganssh Janardan Kamati 3 Ind. Dec. 330.
2. The question is whether Rule (3) has been overruled by the Privy Council decisions in Deendyal Lal v. Jugdeep Narain Singh 1 C.L.R. 49 : 3 Suth. P.C.J. 468 : Ind. Dec. 715 and Hardi Narain Sahu v. Puder Perkash Misser 11 I.A. 26 : 5 Ind. Dec.420. In Pandu Vithaji Ladke v. Goma Ramji Marwadi 21 Bom. L.R. 213 the point did not really arise, because the purchaser was there suing for possession, so that the case fell under Rule (1). But Heaton, J., in his judgment refers to these two Privy Council cases, and says he does not think that 'any stranger should ever be placed in joint possession of jointHindu family property' (page 475 Page of 43 B.--[Ed.]), so that it may be taken he disapproved of Rule (3). Similarly, in Naro Gopal Kulkarni v. Paragowda Basagowda 39 Ind. Cas. 23 : 19 Bom. L.R. 69 he held that a purchaser in possession had only acquired a right to partition, not a right to possession prior to partition. In Hammandas Ramdayal v. Valabhdas Shankardas 20 Bom. L.R. 472 Kemp, J. says 'It has been held by the Privy Council in the cases referred to by my Lord the Chief Justice (viz., the two already mentioned) that where he (an auction-purchaser)...obtains possession, the other co-parceners are entitled to sue to eject him and that all that the auction-purchaser is entitled to in such a suit is a declaration that he is entitled to the share of the co-parcener against whom the decree has been passed.' These remarks are also obiter dicta but show that the question of the validity of Rule (3) has been raised in this Court. In Madras it has been definitely held that 'The Privy Council has decided that the alienee in possession is liable to be ejected at the instance of the co-parceners who are not bound by the alienation': Maharaja of Bobbili v. Venkataramanjulu Naidu 39 M. 265 : 27 M.L.J. 409.
3. I have carefully considered the two Privy Council cases in question, as also the similar case of Suraj Bunsi Koer v. Sheo Persad Singh 4 Sar. P.C.J. 1 : 3 Suth. P.C.J. 589 : 2 SL.R. 242 : 2 Ind. Dec. 705. They are all cases of Court-sales of a co-parcener's share in Bengal, where the law as to the right of a co-parcenar to alienate his undivided share is different from that in Bombay and Madras, as pointed out in Suraj Bunsi Koer v. Sheo Perzad Singh 6 I.A. 88 : .--[Ed.] and 167 Page of 5 C.--[Ed.]. In Bengal one co-parcener has not authority, without the consent of his co-sharers, to mortgage or sell his undivided share in a portion of the joint family estate, in order to raise money on his own account, and not for the benefit of the family. In such a case the principle applicable to the seizure and sale of a share in a trading partnership at the suit of a separate creditor of one of the partners, viz., 'that the partner could not himself have sold his share so as to introduce a stranger into the firm without the consent of his co-partners, but the purchaser at the execution-sale acquires the interest sold, with the right to have the partnership accounts taken in order to ascertain and realize its value', which their Lordships in Deendyal Lal's case 4 I.A. 247 : 1 C.L.R. 49 : 3 Sar. P.C.J. 730 : 3 Suth. P.C.J. 468 : 1 Ind. Jur. 604 : Ind. Dec. 715 held ' ought to be applied to shares in a joint and undivided Hindu estate', was one which obviously could properly be applied. But does it follow that it applies equally to the case of a co-parcener in Bombay, who can alienate his undivided share without the consent of his co parceners? In such a case the analogy of a partnership-firm, where one partner cannot introduce a stranger into the firm without the consent, of his co-parceners, does not operate, at any rate, to anything like the same extent, Accordingly, I venture to doubt whether [if the question directly arose with reference to the decision on which Rule (3) is based] the Privy Council would apply the principle with the same strictness to Bombay. Again in Deendyal Lal's case 4 I.A. 247 : 3 Sar. P.C.J. 730 : 3 Suth. P.C.J. 468 : 1 Ind. Jur. 604 their Lordships only decided that, on the above principle, they ' ought not to interfere> with' a decree giving the excluded co- parcener possession of the whole property; and it may legitimately be doubted whether, if the decree had been one leaving the purchaser in possession of a half-share, they would have interfered, apart from the doubt whether the plaintiffs' mother was entitled to a, share. It should be noted that in Suraj Bunsi's case 6 I.A. 88 their Lordship;; re furred with approval to Sir Michael Westropp's judgment in Udaram Sitaram v. Ranu Panduji 11 B.H.C.R. 76 showing inter alia how she remedy against an undivided share is to be worked out by the holder of a decree in the debtor's life-time and this covers the observation of Sir Michael Westropp J. page 83 Page of 11 Bom. H.C.R.--[Ed.] that the sale should be conducted on the same principle as the attachment, unless by arrangement with the co-parcenors, which would often be advantageous to everybody concerned, the sale were confined to a particular portion of the family estate.' A stranger-purchaser might get possession with the consent of the then co-parceners: surely the Privy Council would not say that, on the suit of a co-parcener, subsequenlty born, the purchaser should be, ejected, and merely be given a declaration of his right to obtain a partition. Equitable considerations may come into play against ejecting him ; and it must be remembered that he is not in 'unlawful possession' and so liable to pay mesne profits, cf. Bhirgee Nath Chaube v. Nardingh Tevjari 39 A. 61 : 14 A.L.J. 1161 Banwari Lal v. Mahesh 49 Ind. Cas. 510 Gangabisan Jeevanram Marwadi v. Vellubhdas Shankarlal 87 Ind. Cas. 703 : 26 Bom. L.R. 464 : A.I.R. 1924 Bom. 433. The Privy Council decision does not, in my opinion, amount to saying that in no case can the Court properly allow a stranger-purchaser to remain in possession, nor to an implied overruling of the view taken in Balaji Anant Rajadiksha v. Ganesh Janardan Kamati 3 Ind. Dec. 330 that Rule (3) can be given effect-to by this Court and those subordinate to it though it is 'as far as it can go with prudence.' There are no decisions [as opposed to obiter diets in which Balaji's case 3 Ind. Dec. 330 is not considered] binding us to take the contrary view, and I do not, therefore, think it necessary to refer the question to a Full Bench. The principle of the Privy Council decision should be given effect to in proper cases; but, in the view we take, it is not necessarily applicable to all cases and the Court has a discretion to allow the alienee to have joint possession with the plaintiff-co-parcener. Bach case (as to the propriety or otherwise of allowing the purchaser to retain possession) should, I think, be decided on its own facts, just as the Court in Karanbhai v. Ranchhod 26 B. 141 : 3 Bom. L.R. 568 left it to be decided 'on the merits' whether the plaintiff-coparcener in that case should be decreed joint possession under Rule (2). In the present case, I agree with my learned colleague, that there are no sufficient grounds for evicting the defendant No. 5, who is a bhauband and has been in long possession, supported by a Civil Court decree against some of the co-parceners.
4. The decree of the lower Appellate Court, in Appeal Nos. 308 of 1923 is accordingly reversed, and the decree of the trial Court restored. Appellant to get his costs of this appeal and Appeal No. 30S of 1923 in the lower Court from respondents but the lower Court's order as to the costs of Appeal No. 312 of 1923 to stand.
5. Plaintiffs and defendants Nos. 1, 2 and 3, form a joint Hindu family. Defendants Nos. 4, 5 and 6 are their divided bhaubands. Plaintiff No. 1, defendant No. 1 and Daji (father of plaintiff No. 2) are the sons of Manku Devji. Defendants Nos. 2 and 3 are the grandsons of Manku's brother Appa.
6. In the year 1918 defendants Nos. 1, 2 and 3 brought Suit No. 457 against defendants Nos. 4 and 5 in the Court of the Second Class Subordinate Judge at Baramati, for possession of certain immoveable property. The suit was decreed by that Court, but was dismissed on appeal. Plaintiffs then brought this suit in 1921 against defendants Nos. 1 to 6 for a declaration that they and defendants Nos. 1, 2 and 3, were joint owners of the said property and to recover possession of the same jointly with defendants Nos. 1, 2 and 3. The claim was resisted by the 5th defendant who denied the plaintiffs' title-and contended that the Appellate Court's decree in Suit No. 457 was binding on the plaintiffs. Both these defences, failed in the lower Courts. They held the plaintiffs' title proved, and that finding must be accepted in this second appeal. As to the other contention it is sufficient to say that these plaintiffs were not joined as parties to Suit No. 457 of 1918, nor do they claim under any of the parties to that suit. In the opinion of the lower Courts, therefore, the only effect of the final decree in that litigation was to extinguish the rights of defendants Nos. 1 2 and 3 in the suit property and to leave. unaffected the plaintiffs' undivided share therein. The trial Judge then passed a decree declaring that the plaintiffs had an undivided one-third share in the suit property and awarding them possession of that share jointly with defendants Nos. 5 and 6. On appeal, the learned Assistant Judge varied that decree for the reasons, and in the manner, following--'It is an established principle of Hindu Law that a stranger should not be placed in joint possession with co-parceners in the joint family: Handu Vithoji Ladke v. Goma Ramji Marwadi 21 Bom. L.R. 213. That ruling and another in the same Volume at page 17 lay down that in such cases the stranger should be allowed to file a suit against the inombers of the joint family for a general partition of the entire family properties. It is in evidence that there are other properties owned by the joint family of plaintiffs and defendants Nos. 1 to 3. Following those rulings, I hold that plaintiffs are entitled to possession of the plaint property as against defendants Nos. 5 and 6 who may file a suit for general partition of the entire property of the joint family of plaintiffs and defendants Nos. 1 to 3 and then obtain possession of what property may be awarded to them.' The 5th defendant has brought this second appeal. His main contention is that, in the circum stances of this case, the plaintiffs were not entitled to deprive him of his long possession and that the decree passed by the trial Court was right. I see much force in that contention.
7. The 5th defendant is a divided bhauband of the plaintiffs; he has acquired a title to a portion of the property belonging to the joint family consisting, of the plaintiffs and defendants Nos. 1, 2 and 3; he has now been in possession of that property for some years; and his possession is sanctioned by a decree of the Court. He is no doubt not entitled to exclusive possession of that property. In the circumstances it was open to the plain tiffs to sue for a complete partition; or to claim their share in this particular parcel of property if the other co-parceners did not object as in Naro Gopal Kulkarni y. Paragowda Basagowda 39 Ind. Cas. 23 : 19 Bom. L.R. 69 or to us for joint possession with the 5th defendant as in Dugappa Sheti v. Venkairamaya 3 Ind. Dec. 325 Naranbliai v. Ranchhod 3 Bom. L.R. 568 and Bhiku v. Puttu 8 Bom. L.R. 99. The present suit, however, is an attempt on the part of the plaintiffs in association with their co-parceners, defendants Nos. 1, 2 and 3 to evict the 5th defendant who has long been in possession and whose possession is supported by the decree obtained by him against those co-parceners. In Balaji Anant Rajadiksha v. Ganesh Janardan Kamati 3 Ind. Dec. 330 Westropp, C.J., said (page 503 Page of 5 B.--[Ed.]):
In certain cases in which the purchaser of a co-parcener's share has peaceably obtained possession, Division Benches of this Court have refused to oust him, and have declared him entitled to hold as a tenant-in-common with the other co-parceners. Such were Mahabalaya v. Timaya 12 Bom. H.C.R. 138 Babaji Lakshman v. Vasudev Vinayak 10 Mad. Jur. 344 : 11 Mad. Jur. 344 : 1 Ind. Dec.63 and Kallapa v. Vinkatesh Vinayak 1 Ind. Dec. 873. In all of these cases the suit was instituted by the co-parceners, other than he whose share had been sold, against the purchaser in possession, and the plaintiffs sought to oust him. from that possession.
8. In Bhiku v. Puttu 8 Bom. L.R. 99 Batty, J., referred to several decisions of this Court bearing on the subject and said (page 105 Page of 8 Bom. L.R.--[Ed.]):
But in a long series of decisions it has also been laid down that though the separate possession claimed cannot be given without partition,, in such cases a co-parcener, joint tenant or tenant-in-common may obtain possession in common with a purchaser who has obtained separate possession without partition of specific undivided property in which such co-parcener has an undivided unascertained share.
9. The respondents (plaintiffs) have, however, relied on the view expressed in Pandu Vithoji Ladke v. Goma Ramji Marwadi 21 Bom. L.R. 213 The facts of that case were these. One Vithu and his son Pandu owned the property in dispute as joint family property. In 1913 Vithu sold the whole property to plaintiffs,' who then brought a suit to recover possession of the property from Pandu. The contention of Pandu was that the sale by his father was not binding on him and did not affect his share in the property. His defence succeeded and the trial Court passed a decree granting the plaintiffs joint possession of half the suit property, namely, Vithu's share, along with Pandu. The decree was confirmed on appeal. In second appeal, Heaton, J., referred to the judgment in Deendyal Lal v. Jugdeep Narain Singh 4 I.A. 247 1 Ind. Jur. 604 and said (page 476 Page of 43 B.--[Ed.]):
I think myself I cannot do better than follow the very words used in framing the decree of the Privy Council. The plaintiff obviously cannot obtain full possession of the property which is what he sues for, for he is not entitled to such possession. He ought not to be allowed to have joint possession for that as I have explained is contrary to reason and authority. The most that he can get is a declaration.
10. It will be seen that it was a suit brought by the purchaser of the interests of one co-parcener to obtain possession of the property sold to him. On those facts, it may be conceded that the purchaser was not entitled to claim either exclusive possession or joint possession with the other members of the family. There is much to be said in favour of the view that the Court will not place a stranger by force in joint possession with members of a Hindu family. But the position is different where he has peaceably obtained possession and has been long in possession and a coparcener other, than he whose share has been sold sues to eject him. Such co parcener is not left without a remedy. None of the cases referred to by Westropp, C.J., in Balaji Anant Rajadiksha v. Ganesh Janardan Kamati 3 Ind. Dec. 330 and by Batty, J., in Bhiku v. Puttu 8 Bom. L.R. 99 were considered in Pandu Vithoji Ladke v. Goma Ramji Marwadi 50 Ind. Cas. 765. And their Lordships' judgment in Deendyal's cast 4 I.A. 247 : 3 Sar. P.C.J. 730 : 3 Suth. P.C.J. 468 does not lay down the rule that a purchaser from one co-parcener can under no circumstances be allowed to remain in possession as a tenant-in-common with the other co parceners. In Hanmandas Ramdayal v. Valabhdas Shankardas 46 Ind. Cas. 133 : 20 Bom. L.R. 472 which is the other case referred to by the Assistant Judge, the main question was, whether it was competent to one member of a joint Hindu family to sue a person who had purchased a particular parcel of family property for his share therein without suing for a complete partition; it was held that it was not a valid objection to the suit that the plaintiff claimed only a partial partition.
11. For these reasons, I agree in the order proposed by my learned colleague.